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February 16, 2021
Move Aways: What The Courts Must Consider

Hello, Carla Hartley here. I am going to be discussing the third factor that courts must consider when a parent applies for a move away with minor children. Okay, I am going to preface this by saying this numerical assignment of factors is totally from me. I think it’s arranged in a fairly rational order in that the court would have to consider kind of along these lines. I tend to think in terms of flow charts and when I’m visualizing an argument it’s usually in a flow chart form. So that’s kind of what you’re getting here.

Alright, so the third factor that the court would have to consider when a parent applies to move away with minor children is what are the interests of the children. What is the child’s interest in the stability and continuity of the custodial arrangement? And again as I’ve discussed previously, that factor do we have true joint custody or do we have truly a primary custodial parent must be considered first.

So this too gets considered two ways. One if we have a primary custodial parent, then the child’s interest in remaining with that primary parent and keeping that primary bond is significant and it is going to be very likely that the court will try to find a way to ensure that the other parent will have about the same amount of time, maybe if all other things are equal and all other factors lineup all right, that’s about what the court would look at doing.

Let’s take an example. If a parent, the non-custodial or nonprimary parent has two weekends a month, Alright, so this is going to be a situation where probably the court is going to be looking at the primary custodial parent having a presumptive right to move and the court is going to look at this and say, Okay, depending on the distance of the move the court’s not going to be able to say the child is able to go to you know, North Carolina every other weekend. It’s just not going to happen. It’s too hard on the kid especially during the school year, but what could happen is the courts going to say well we have this much custodial time, this many, you know days per month. We got six days per month. So let’s break this out and you know try to fit the same number of days for the non-custodial parent into summers and vacations maybe a couple of long weekends. So that’s something the court might do.

Now, there may be reasons for the court to reduce time that simply has not been considered yet. And I’m not talking about that. I’m talking about this as though it’s in a vacuum because I only have these little five-minute video segments and I have to make this rational in this format. All right.

So the other way the court is going to consider this is if we have true joint custody. If we have true joint custody, the interest of the children in the stability and continuity of the custodial arrangement is going to tend to create problems if a parent wants to move without the other parent. This can be really problematic. Let’s just say you have equally shared custodial time. Now, we’re looking at a situation in which the move away will not be deemed to be in the best interest of the child because now we do have detriment. The child no matter what is going to lose half the time with one parent. One parent that they’ve been with half the time, week on week off, two, two, three, whatever schedule they’ve had suddenly that child is going to be moving away from one of the parents os is going to be staying here and not moving with one of the parents.

So now we’re looking at real detriment and the court’s going to have to do what is called a de novo assessment of what is in the best interests of the child. That can lead to a lot of litigation and I think we have seen I think, I know we have seen many instances in our local courts where the mediators, the child custody recommending counselors, and the judges have found that the move away should not be allowed just as we’ve found many many times that the court said okay on these facts in this circumstance, that the child will move with the parent. However, they put a bunch of conditions in place and this gets really really down to nitty-gritty. It is often hotly contested and it is not inexpensive to try to do this.

So again, I cannot emphasize is enough. If you are contemplating asking the court to let you move away with the minor children, you really should talk to an attorney before you file your motion not after you file your motion. Before you file the motion. At least be informed before you go ahead with this. You should know what the possibilities of getting what you want are and what the possibility of really really being devastated are. That’s our third factor. I hope this has been helpful. I hope it’s convincing some of you that yes, you probably can move. I hope it’s convincing others of you to rethink it. I hope it convinces all of you to speak to competent counsel first. Thank you. Bye. Bye.

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