Certainly, making the decision to move away after a divorce and after an initial custody arrangement is determined can be a hard decision for anyone to have to make. Whether the move is for a new job, because of a remarriage, or simply to start a fresh chapter in a new setting, much consideration often goes into making that choice. That choice certainly becomes more complicated when children are involved, and it must be decided whether the children will relocate as well, or whether current custody arrangements will change in some way.
If you or your ex-spouse is considering a relocation, it is always wise to check your separation agreement or child custody order for any restrictions on relocation that may exist. Some custody orders place restrictions on parents moving out of state or moving the children more than a specified number of miles away. If you have such restrictions in your custody order and you violate them, you could be found to be in contempt of court and subject to a variety of penalties, which may, depending on the severity of the situation even involve the loss of some of your custodial rights. For most parents, this simply isn’t worth the risk.
Even if your separation agreement or custody order does not specifically place limits on traveling or relocating, those considering doing so should still be cautious, as moving without the consent of the other party or the permission of the court might later be used against you, or result in the other parent seeking an emergency custody order for the return of your child to North Carolina.
This is not to say that relocation will never be allowed. In fact, in many circumstances, courts do allow a parent, particularly if that parent is the child’s primary physical custodian, to relocate with the child. As is always the case in contested custody issues, the court will seek to make a decision regarding the proposed relocation that is ultimately in the best interest of the child. If a parent objects to the other parent relocating with the child, that parent will have the burden of presenting evidence that the move is not in the child’s best interest.
Ultimately, a relocation may end up being the best decision for your family, and certainly as a parent, you are in the best position to know whether or not that is so. Regardless, however, it is important to think through that decision carefully, and to make sure you are making it in accordance with the terms of any agreements or orders already in place in your case. Doing so is ultimately in the best interest of all involved.
If you need to speak to an experienced family law attorney regarding your child custody arrangement, please contact Adkins Law to arrange a consultation.
Under the United States Constitution, and under North Carolina law, parents have the “paramount right to custody, care, and nurture” of their minor children.” This is otherwise known as the “superior rights doctrine,” and essentially, it means that parents are considered to have rights that are superior to those of non-parents when it comes to determining and acting in the best interests of their children. Thus, for the most part, in North Carolina and across the country, courts will seek to allow parents to maintain custody of their children whenever it is possible.
In certain instances, however, parents may be unwilling or unable to provide a safe and nurturing environment for their children. In those situations, the court may consider other options, and grandparents may seek to petition the court for custody of their grandchildren. Certainly, if you are a parent or a grandparent who finds yourself in this situation, consulting an attorney should be your first step.
Generally, however, it can be helpful to know that as a grandparent seeking custody of your grandchildren under the North Carolina General Statutes, in order to seek custody of your grandchildren, you must be able to demonstrate to the court that the child’s parents are unable to fulfill their parental duties, which essentially means that you must establish that the parents have taken actions that are inconsistent with their paramount constitutional right to custody of the child(ren). While there are different ways to meet this burden of proof, in some cases grandparents may show that an unfit parent may:
· Have abandoned their child;
· Have continually neglected their child;
· Have abused their child;
· Have shown an ongoing pattern of substance abuse;
· Have decided to voluntarily give up custody of their child;
· Be unable to provide a safe and nurturing home for their child;
· Have a proven history of domestic violence;
· Be unable in other ways to provide the safe and nurturing home that the child needs to grow and thrive.
If, considering the law and the proof that is required to obtain custody you believe you can do so, you can proceed to seek custody under N.C. Gen. Stat §50-13.1(a). Under this provision, you can file your claim for custody at any time, provided you can establish standing to do so. Standing simply means that the person who is seeking the custody has a right or interest that is recognized and protected under the law. Certainly, the ultimate determination as to whether or not a grandparent is granted custody will be left to the discretion of the court, as is the case with all custody matters.
In other situations, grandparents may only be interested in seeking visitation with their grandchildren, as opposed to full custody. In that situation, parents continue to have the paramount authority with respect to the care and well-being of their children. Accordingly, unless certain elements of proof are met, it is unlikely that a court will order a parent to allow visitation with their grandchildren. While grandparents do have a right to file a motion to intervene in an ongoing custody action between the parents to seek visitation, this does not mean that the request will be granted. Generally, and absent extraordinary and extenuating circumstances, courts feel that the parents are best suited to make this determination on their own.
 North Carolina law does recognize two situations in which a non-parent has standing to seek custody of a child, including when: (1)The non-parent has a parent-like relationship with the child (when the person has assumed parental duties and has an emotional attachment to the child similar to that of a parent; or (2)The non-parent has a biological or adoptive relationship with the child, and there are allegations of abuse, neglect, or unfitness against the child’s parent(s).
If you need to speak with an experienced divorce attorney regarding grandparent visitation and custody, please contact Adkins Law to arrange a consultation.