While I have not been practicing Family Law for a significant amount of time, I have been practicing long enough to realize that a particular type of motion increases in frequency during the summer and fall. This particular type of motion is a Motion to Relocate, sometimes called a Motion for Change of Residence. I am not 100% sure of the significance that summer and fall have in causing the increase of this motion, but I am guessing it has something to do with the new school year or the fact that people do not want to move in the dead of winter. Both seem like plausible explanations to me.
When you go through the unfortunate experience of getting a divorce and you have a child you will either have primary residential responsibility of your child, be awarded parenting time (you would then be considered the noncustodial parent), or you and your ex will share equal residential responsibility, which means you will equally share custody of your child.
Most divorcées with young children will likely meet someone else and possibly get remarried; to think otherwise is simply unrealistic. Sometimes this new life or the possibility of a new life will lead you to opportunities outside of the State of North Dakota. That’s fine, because you are free to leave this wonderful State, with your child, as long as you prove it is in your child’s best interest. If you want to leave without your child, go ahead and pack your bags, but be aware of the possible consequences.
Those parents who have primary residential responsibility cannot change the residence of their child unless the other parent consents or the court allows the relocation, as long as the other parent has been given court-ordered parenting time. N.D.C.C. § 14-09-07(1). If your ex is not willing to consent to you moving your child out of the State of North Dakota, then you will have to request the court’s permission and show it is in your child’s best interest by proving the Stout–Hawkinson factors.
• For example, if you have primary residential responsibility of your child and you meet your future soulmate. You and your soulmate then get married. Your soulmate finds the job of a lifetime in Barrow, Alaska, and you find a great job there too. Your ex says he’s not sentencing his child to a life in Barrow, Alaska, where it is dark for 67 days in a row, and light for 80 uninterrupted days. You have no other choice than to request the court’s permission. In doing so, the court will analyze the following factors:
· The prospective advantages of the move in improving the custodial parent’s and child’s quality of life;
· The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent;
· The integrity of the noncustodial parent’s motives for opposing the move; and
· The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.
It’s quite simple, if you satisfactorily prove those factors the court will grant your motion to relocate, allow you to move, and restructure the other parent’s parenting time. If you don’t, then your child will remain in North Dakota, with or without you.
Parents who share equal residential responsibility cannot change the residence of their child to another state without consent of the other parent or court permission. N.D.C.C. § 14-09-07(2). If you happen to be in this situation, your ability to move is a bit more complicated than if you are the parent with primary residential responsibility or are awarded parenting time. Because you share time with your child equally with your ex, you will need to make two separate motions. The first motion you will need to make is a motion for change of custody. Essentially, you will need to request that the court make a determination that you have primary residential responsibility of your child (stay tuned for my blog on this issue). If the Court determines that you should be awarded primary residential responsibility, then you will have to prove the Stout-Hawkinson factors, which are discussed above.
• For example, you and your ex happily live in Fargo, North Dakota. You each get remarried, and each want to leave the State of North Dakota. You want to move to Maine, while your ex wants to move to Washington. You will each need to bring a motion to change custody, and a motion to relocate. The court will then make a decision as to the primary residential responsibility of the child and whether it is in the child’s best interests to leave the State of North Dakota.
Those parents awarded parenting time with the child don’t need to request Court permission to move. I mean, why would you? To be frank, if you are moving out of the State of North Dakota a Judge isn’t going to give a hoot, unless you are planning to take your child. However, this is not to say that a noncustodial parent’s decision to flee the State of North Dakota is without potential consequences, because like almost everything else in the legal world it does have potential consequences. Specifically, a parent with primary residential responsibility is not required to obtain the Court’s permission to move if the noncustodial parent “has moved to another state and is more than fifty miles from the residence of the other party with primary residential responsibility.” N.D.C.C. § 14-09-07(3).
• For example, you, the ex, and your child happily reside in Fargo, North Dakota. You get a great job opportunity in Minneapolis, and meet your soulmate on Match.com. You make the decision to move. You pack up your U-Haul and head out, thinking everything will be fine and you’ll see your child just as often as you did while you were in Fargo, North Dakota. Well, a few months later your ex meets her soulmate on eharmony.com and decides to move to Hawaii with her new beau, and of course she’s taking your child. Guess what? Your decision to move into the State of Minnesota and over 50 miles away from your ex has dramatically affected your ability to stop her.
It is not unreasonable to think that you or your ex may want to leave the State of North Dakota at some point. If you find yourself wanting to make a motion to relocate, or on the receiving end of one, please give us a call, because these situations are complicated. There are two of us at SW&L who handle family law cases, including motions to relocate and motions to change custody. If you have a family law issue that you would like to discuss, please do not hesitate to call (701) 297-2890 and ask for Jeni or Greg or email me at firstname.lastname@example.org or Greg at email@example.com.