Out Of State Moves And The ND Century Code
So, you are thinking about moving out of state? We understand that sometimes it helps to just get a fresh start on things. Sometimes things just aren’t working out anymore. After all, every rose has its thorn. Even if you feel miles apart inside, actually physically creating that distance and bringing your child along for the ride has its own limitations/requirements. So, here are a few things you should know before you get on the road again.
There are requirements that apply to both primary residential responsibility arrangements and equal residential responsibility arrangements. The term “primary residential responsibility,” is simply defined as, “a parent with more than fifty percent of the residential responsibility.” See N.D.C.C. 14-09-00.1(7). Under N.D.C.C. 14-09-07(1), “A parent with primary residential responsibility for a child may not change the primary residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree.”
The same rules apply to equal residential responsibility arrangements as well, with the added requirement that the Court has to actually modify custody and grant the moving party primary residential responsibility to approve the relocation with the child. See N.D.C.C. 14-09-07(2). As a practical matter this makes a lot of sense when one considers how difficult it would be to share equal time when living a substantial distance apart, especially during the school year. As such, it is safe to say that relocating out of state with the minor child under an equal residential responsibility arrangement is far more difficult. Alternatively, a court order is not required if the other parent: “(a) has not exercised parenting time for a period of one year; or (b) has moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the parent with primary residential responsibility.” Id. At (3)(a)&(b).
To simplify, you need consent from the opposing party or an order from the Court granting your relocation, unless the non-custodial parent’s conduct falls into one of the narrow exceptions provided above. If the other parent does not give consent and you do not have a court order, then that parent can file an Order to Show Cause and the Court may demand you to return to the state with the minor child. Should you fail to do so, the Court can issue a warrant for your arrest.
Common Questions And Answers
What if I don’t have a custody order, but I have plans to relocate to another state for a job opportunity?
The first and most advisable option here is to get the opposing party either to stipulate to your prospective relocation, or obtain written consent to relocate from that party. You may ask, why does this matter? The reason it matters is because the other party can start proceedings for custody shortly after you leave. If a judge sees that you relocated without notifying the other party, without notifying the Court, and/or without obtaining consent they will most likely weigh these decisions against you. In other words, the Court appreciates transparency and it will help your case. The opposite could be seen as a lack of regard for the child’s best interests, as well as a lack of regard for the other parent’s constitutional rights. This matters because an extremely large part of initial custody evaluations are based on what is in the best interests of the child.
What do I do if I have a custody order and no stipulated agreement to relocate?
The cheapest and most effective option is to get the written consent of the other parent. This can be on paper, via text, or email. Just make sure that it is clear who you are speaking with, the date, and that they are responding to your actual request to relocate with the minor child/children.
What if I have a custody order, no stipulated agreement, and no consent from the other parent?
In this case, you want a court order permitting relocation. These are never guaranteed. You need to have legitimate reasons to relocate out of state. The reasons are not just for yourself and your own job opportunities, but great thought also needs to be put into how the child/children will prosper in the new environment, and how leaving the old environment will affect them. In relocation matters, the party seeking to relocate has the burden of proving, “by a preponderance of the evidence the move is in the child’s best interests.” Green v. Swiers, 2018 ND 258, ¶ 5, 920 N.W.2d 471 (quoting Larson v. Larson, 2016 ND 76, ¶ 21, 878 N.W.2d 54).
When determining whether the move is in the child’s best interests, the district court must apply four factors commonly referred to as the Stout–Hawkinson factors. Those factors are as follows: (1) The prospective advantages of the move in improving the custodial parent’s and child’s quality of life; (2) The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent; (3) The integrity of the noncustodial parent’s motives for opposing the move; and (4) 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. Norby v. Hinesley, 2020 ND 153, ¶ 6, 946 N.W.2d 494. Each of these factors has additional considerations that come into the equation as well, which is why it’s important to hire an attorney that is well-versed in family law to assist you.
Before you and the opposing parent go your separate ways, there are clearly some things to consider. The process can seem overwhelming, so don’t hesitate to contact us. Please read this disclaimer.
For more information about in-state moves please see the following blog.