Divorce Differently |
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After divorce, the idea of a “fresh start” can be enticing. You may want to move away and start a new chapter of your life where no one knows you as your former spouse’s wife or husband. For a child, however, relocating to a new place can be difficult. Moving uproots a child from the home that they know, their school, and their friends. If you share a child with your former spouse, it is unlikely that you can relocate out-of-state easily with your child, even if you are the primary custodian of the child. Even if you do not have a custody agreement in place, if you share parenting time with a co-parent, it is not wise to move out-of-state without getting your co-parent’s consent or the court’s permission first. A court cannot tell you where to live and as an adult, you have the right to relocate, but that does not mean you can bring your child along with you in every circumstance.
Relocation with a Custody Order in place If you already have a child custody order in place, that is the first place you need to look to determine what is necessary if you want to relocate with your child. Many custody orders will specifically address relocation. Some custody orders explicitly state a geographic limit on how far you can move from the child’s hometown or a specific amount of notice you are required to give your co-parent before a relocation. For instance, your custody order may state that you do not need consent to move within the surrounding counties of your town. If your planned relocation is within that geographic limit, then you don’t need consent from your co-parent to relocate! You would just need to give your co-parent the required amount of notice prior to your relocation, per your custody order terms. If your custody order requires you to give your co-parent notice or receive consent to relocate, you need to consult with your co-parent about the relocation. Explain the reasons behind your relocation plan. Discuss a feasible plan for a new physical custody schedule or how you will maintain the current physical custody schedule. Consider how the child will be transported back and forth for the other parent’s parenting time and who will pay for any additional travel expenses (if you are making the choice to relocate, this additional cost may be something you take on). If you can get on the same page with your co-parent about relocation, you have the freedom to modify your custody arrangement as you see fit. If you and your co-parent agree on a new physical custody schedule and you need to modify your Consent Order for Child Custody, reach out to us to help with that process. Return to Court, if necessary If you notify your co-parent of your intention to relocate with your child and your co-parent does not give you consent, then you can file a motion or lawsuit with the court requesting to relocate. If granted, a new court order would be entered by the court. It is not a good idea to relocate with your child without getting the court’s permission if your co-parent does not consent. You could be in violation of your custody order and could be held in contempt of court, ordered to pay a fine, or even serve jail time. It could also hurt your own case later, as most judges do not want to see parents absconding across state lines with a child. If you relocate without permission of your co-parent or the court, that action will serve as evidence that you are not prioritizing your child’s relationship with the other parent and can negatively impact you. Additionally, your co-parent could file for and receive an emergency custody order for your child, which would result in you being forced to return the child to his or her home state. Challenging your co-parent’s proposed relocation If you are not the primary custodial parent, your co-parent plans a relocation and you disagree, you should of course first engage in a good faith discussion with your co-parent about why you oppose the relocation. If discussions fall flat, you can challenge the relocation in court. You would need to show the court that the proposed relocation is not in the child’s best interests. If the move will necessitate a change to the child’s school, remove accessibility to the child’s close family members who all live in the area and support the child, if the child has unique educational or sports opportunities in the area and would lose out on those opportunities if they relocated, or if the child moving would prevent a continued relationship with a parent for lack of resources to pay for travel or any other reason, the judge might find that the relocation is not in the child’s best interest. These are just examples and not the only considerations a judge might make in determining if a relocation is in a child’s best interest. What does a court consider in a relocation case? The court must consider all relevant factors in a parent’s request to relocate with a child. Most notably, your reasons for the relocation and whether the relocation is in the best interest of the child. You will need to prove to the court that the advantages of the move will outweigh any potential negative impact the move might have on a child. Factors the court may consider in North Carolina relocation cases are as follows:
Relocation with no Custody Order in place Again, it is not wise to relocate out-of-state without the other parent’s written permission. Seek your co-parent’s consent in writing first. If your co-parent will not agree to your relocation with the child, then you can file a motion or lawsuit requesting the court’s permission to relocate with the child. If you are considering relocating or your co-parent has brought up a proposed location, please reach out to our office. We can help you understand your options in a proposed relocation as it applies to your unique circumstances. This is the second of a two-part series about parenting time refusal. Please read the first part of the series to understand the reasoning behind why many children are resistant to a new custody arrangement and then return here to find out what you can do about parenting time refusal within the confines of the law and with respect to your child and your co-parent.
Do I have to require my child to see his or her parent? Many parents ask if they must “force” their child to visit with the other parent. If you are using the word “force,” I would suggest that you reframe your thought-process around your child’s time with the other parent. “Force” suggests that you don’t want to require the child to go with the other parent or that you are supportive of the child’s refusal to see the other parent. As a primary parent, you need to support your child’s relationship with your co-parent. Your child benefits from both parents’ involvement and engagement in his or her life. If there is a formal custody order (either a Consent Order entered into by the parties and then signed by a judge or a custody order entered following a custody hearing or trial), then yes, you need to require your child to see the other parent and make all attempts to follow the custody order. Refusing to do so is a violation of a court order and you could be held in contempt of court for failing to follow it. If there are no concerns for your child’s safety while they are with the other parent, you should encourage your child to enjoy their time with the other parent, bringing up positive attributes of the other parent, and casting your child’s time with the other parent in a positive light. Think about parenting time like you do other mandatory events. Your child must go to school, and they also must go to see the other parent. Does your child always want to go to school? No, but you require them to attend. Similarly, your child might not always want to go to the other parent, but they need to and must go. Should I require my child to spend time with me? As a parent, you must weigh the options and decide if requiring your child to come to spend time with you is worth the potential fallout. If the primary parent is a co-parenting advocate and your child is on the younger side, then generally, I would advise that you continue requiring your child to spend time with you. Your child will benefit from having a relationship with both parents and it is usually best for the child to continue having time with you. If a child is a teenager, you must consider the impact of requiring parenting time on your long-term relationship with your child. Forcing parenting time upon an older teenager may not be worth the negative impact it will have on your long-term relationship. Consider engaging in family therapy sessions with your resistant child. Listen to the therapist on how to engage and support your child through this rough patch. If you play the long game with your kids, keep showing up, supporting, and loving them through this minor hiccup in your parent-child relationship, usually they will come around. How old does a child have to be to refuse to see a parent? There is no set age in North Carolina or South Carolina when a child is permitted to decide whether or not they spend time with either parent. What do I do if visitation is truly harming my child? If there is concern for abuse, you should contact law enforcement or the Department of Social Services (“DSS”) and make a report. This should only be done if there is a true, major concern of abuse. Including law enforcement or DSS in your family members' lives is not something to do lightly and definitely not something to be used as a manipulative tool to stop parenting time with the other parent. If there is any concern of abuse, immediately connect your child with a qualified therapist. Separation and divorce are tough on the adults involved, so be kind and understanding that it is also difficult for your children. Your children are less equipped with the ability to regulate their emotions and process them. They may blame one parent or struggle with the transition between households. If you need help navigating this process, reach out to our office and connect you or your child with a qualified therapist. If you are unsure how to navigate this challenge in your parenting time schedule, please reach out to us to schedule a consultation. What do you want your child’s divorce story to be? Ending an unhappy union through a divorce can sometimes be the best solution for a family. We know divorce affects children, but it does not have to traumatize children or be nasty and contentious. It can be a relief for your children to see both of their parents happier and better-adjusted post-divorce. Your child can have the opportunity to develop a stronger relationship with both parents and their siblings because of divorce. Your divorce approach can impact a generation. What will your child’s lifelong memories be after your divorce? Will your child remember the joy of seeing both of their parents sitting in the same row at their school play? Or will they remember the tension between you and your co-parent as you sat on opposite sides of the theatre and agonizing over which parent to run to first after their play? Will your child remember stressful custody exchanges or special times at both parents’ homes? Keep this in the forefront of your mind as you proceed through your separation and divorce.
A parent is never perfect, but you are the perfect parent for your child. Divorce is a huge transition in a child’s life and there are steps you can take to help your child’s divorce story be a positive one. LOVE YOUR KIDS Love them. That’s simplistic, but it’s truly the best thing you can do. Be present with your child as they experience this major life change. Listen actively if they want to talk; be with them quietly if they don’t. Hug them, check in with them often, and remind them that you love them and will be there if they ever want to talk. Be open to their questions and answer them honestly at an age-appropriate level. Keep in mind as you answer that you protect them from the legal side of the divorce, even if they are older. Explain the new logistics of at whose house they will sleep and when, and who will pick them up from school, but shield them from the intricate details of child custody, child support, alimony, and anything regarding the marital estate. TREAT YOUR CO-PARENT RESPECTFULLY Make your child’s well-being your priority by treating your co-parent with respect and civility. Think of how your child will be affected by your words, thoughts, and actions around the divorce and toward your co-parent. Treat your co-parent with respect for no other reason except that your co-parent is an extension of your child. Be aware of how you speak about your co-parent around your child and only speak positively about your child’s time with your co-parent. Kids will often say they don’t want to go to the other parent’s home, but there can be many reasons for this. Don’t jump to conclusions. Sometimes a child’s hesitance to leave you is just a sign that the child has a healthy attachment to you, like when a child cries at daycare drop-off (and recovers within a minute of you walking out the door). DO NOT RELY ON YOUR CHILDREN FOR EMOTIONAL SUPPORT It is okay to be transparent about your own feelings and emotions throughout the divorce process, but do not rely on your children to support you emotionally. Children should not be the ones comforting you about your adult problems. They should not be taking on your emotional load while trying to manage their own. Find a qualified therapist or talk to family or friends for support. By following this advice, you will let your children maintain their childhood through a divorce and preserve pleasant childhood memories with both of their parents. The divorce story your child will tell in adulthood will be one where their parents were brave enough to make the right decision to move on so they could be better people and better parents post-divorce. You can contact us if you are ready to take that next brave step. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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