Child Custody and Relocation in North Dakota

When parents make the decision to divorce, the changes can be overwhelming. After a divorce, it's common for one parent to want to relocate, but this can interfere with custody plans and result in decreased visitation and increased costs for visits. In some cases, relocation will require a change in custody. In North Dakota, unless the custodial parent has permission from the other parent, they will need to ask the court for permission before moving with the child.

Custody Basics

If parents can't decide who should have custody of a child, a court will need to make the decision for them. The court will consider evidence presented by both sides, including witness testimony and expert opinions (if any), and then make a recommendation based on the best interests of the child. The best interest factors are all equally important, and include:

• the love, affection, and other emotional ties between the child and his or her parents, and each parent's ability to return love and affection
• each parent's ability to provide the child with food, clothing, shelter, medical care, and a safe environment
• the child's developmental needs and each parent's ability to meet those needs, now and in the future
• the sufficiency and stability of each parent's home, extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community
• each parent's willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent
• the moral fitness of the parents
• the mental and physical health of the parents
• the home, school, and community record of the child
• the child's preference, if the court finds that the child is mature enough to make an opinion
• any history of domestic violence
• the relationship between the child and any person who is frequently in the parent's home, and that person's history with the child
• the history of either parent making false allegations of abuse against the other parent, and
• any other relevant factor that the court believes is important.

Once the court evaluates all the factors and evidence, it will issue a custody order. The order will be specific to your individual family and will describe who has physical custody (where the child lives) and legal custody (who makes decisions about the child).

Parents can share physical and legal custody, or the court can award sole physical custody to one parent and joint legal custody to both. The court order will often designate one parent as the custodial parent and should include a specific visitation schedule for the non-custodial parent.

Can a Custodial Parent Relocate With a Child?

It depends. If one parent has sole physical custody, they can't change a child's residence to another state unless they receive either court approval, or the other parent's permission. However, a court order may not be necessary if the other parent hasn't exercised parenting time for one year, or if the other parent moved to another state and is more than 50 miles away from the custodial parent's home.

If parents share physical custody of the child, neither parent can relocate with the child unless they have court approval or consent from the other parent. Additionally, they will need a new custody order from the court granting the moving parent sole physical custody. To modify custody, a parent will need to show there has been a significant change of circumstances since the last custody order, and that a change in custody is in the child's best interest.

What Does the Court Consider Before Allowing Relocation?

Before the court will allow a custodial parent to relocate with a child, the parent needs to show that the move is beneficial for the child using the best interest factors. Parents may believe they are making the best choice for the child, but the court does not presume a move is in the child's best interest simply because the custodial parent is making the decision.

For example, in a North Dakota case, a mother asked the court for permission to move to Seattle with her child, but failed to prove that it was best for the child. The court explained that the father was previously awarded parenting time and always exercised this time with his child, so a move would harm the relationship between the child and his father. As a result, the court denied the mother's request to relocate.

In addition to evaluating the best interest factors, a court will also consider the following:

• whether the move will improve the custodial parent and child's quality of life
• whether the custodial parent wants to move simply to deny visitation to the other parent
• whether the non-custodial parent opposes the move because they want to keep the custodial parent close, and
• whether the move will harm the relationship between the child and other parent, and if it will, is there any way to prevent this harm by adding or modifying parenting time.

If the court finds that relocation is in the child's best interest, it will give the custodial parent permission to move. In one 1989 case, a mother petitioned the court to relocate and in response, the father petitioned the court to deny the move and grant him sole physical custody of the child. Ultimately, the court approved the mother's request to move because there were enhanced opportunities for the mother in the new location, and the child was well-adjusted and would adapt easily to his new home. The court denied the father's request to modify custody stating that he failed to prove a significant change of circumstances, and failed to prove that a change in custody would be in the child's best interest. To preserve the relationship between the child and his father after the move, the court increased the frequency and duration of visitation between father and son.

If you are considering a relocation, or if you are the non-custodial parent in a relocation case, you should contact an experienced family law attorney near you.