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RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 12132
Experience:  Experienced in multiple areas of the law.
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I currently share joint legal custody with my ex husband. we

Customer Question

i currently share joint legal custody with my ex husband. we have two young children ages4 and 6. I have been with my boyfriend for over a year and he is transferring back to new York for a promotion. I have the primary phycially custody of the children. he normally gets them every other weekend. I spoke with a lawyer yesterday who told me not to waste money to go go to court, that with me having the primary phycially custody of the boys I could move and let my ex file. that it wouldn't look to bad on my part since the separation papers state that both of us agreed it was in the best interest for me to have primary physical custody. would this really hurt me if I moved? the lawyer said the judge wouldn't be upset that he would just change the visitation to every other thank giving and Christmas plus some of their summer break.
Submitted: 1 year ago.
Category: Family Law
Expert:  RobertJDFL replied 1 year ago.

Thank you for using Just Answer. I look forward to assisting you.

I respectfully ***** ***** disagree with the attorney you consulted, and would strongly urge you to get another consultation. You should also review your custody order to see if it addresses relocating out of state. Some standard agreements allow for moves within certain geographic limitations with proper notice. Others require the parties attend a mediation session to renegotiate if either party wishes to relocate. The ultimate basis for notice provisions is generally to allow the non-custodial party time to file a child custody law suit or seek Court intervention prior to the primary custodian relocating with the children. I would not simply pick up and move, and assume, as this lawyer is telling you, that the judge will not be upset. In my experience, if you take the children away when the father is used to having visitation every other weekend, and that regular contact is suddenly taken away without trying to work something out, the judge will be very upset, and you could find yourself in violation of your custody/visitation order.

If custody has been resolved through court order, any violations of the terms can result in you being found in Contempt of Court which could result in substantial trouble including losing custodial time, fines, and even jail time. At the very least, you could end up paying a lot of money in attorney fees being brought into court for violating the custody agreement, which could also affect you negatively in future custody proceedings.

In a relocation hearing, the judge wants to know your intention in relocating. You also have to prove to the judge that the relocation is in the best interest of the children. Perhaps, your boyfriend has got a better paying job out of state that can greatly improve the quality of life of your children, or maybe the move will offer better educational and other opportunities for the child. As far as the court is concerned, the relocation has to be good for your children. Essentially the court has to be sure that you are not contemplating relocation to keep your ex-spouse from the children. To ensure that the non-custodial parent’s relation with the children is not affected as a result of the relocation, the court may amend visitation schedules, force you to pay for the children to travel back to visit your ex, or provide for alternative visitation such as Skype/Facetime visits.

If you need clarification or additional information, please REPLY and I'l be happy to assist you further. Thank you.

Customer: replied 1 year ago.
The papers don't state anything about relocating anywhere. Doesn't say I have to stay in North Carolina. I tried talking to him about giving him holidays and summer and he told me no he won't agree to anything.
Expert:  RobertJDFL replied 1 year ago.

Wow, I'm surprised it's not addressed in your custody order! Since it is not addressed in your custody order, and there is no law on custodial relocation in North Carolina (like in many other states) regarding specific requirements, as the custodial parent you are free to move out of state with your children. Know, however, that like the lawyer you consulted alluded to, your ex could file to prevent the relocation. While the court may not block the relocation, I agree that they will modify the agreement to allow longer visitation periods between your ex and your children (summers, school breaks, etc). Furthermore, know that a court could also do things like reduce the amount of child support you receive so that the father can better afford to visit with the children, or can order that costs of visitation are paid by one parent or divided equally (which is the most common).

I would encourage you to try again to work out a new visitation schedule, but failing that, make sure you give as much notice as possible prior to the relocation as well.

Customer: replied 1 year ago.
Here's what the custody part states
Expert:  RobertJDFL replied 1 year ago.

Oh, it's not that I didn't believe you when you said the custody order didn't address parental relocation, it's just unusual in my experience because I would never not put that into an agreement where it's always a possibility that it may happen. However, as you know, and like I mentioned, since it's not addressed, and you do have primary physical custody, you can relocate with the children, without mediation, hearing, etc.

Customer: replied 1 year ago.
I just don't want to give a judge any reason to take them away.
Customer: replied 1 year ago.
Now if I relocated without mediation or hearing how does that work with the current agreement of his visitations of every other weekend? Because he won't agree to let me leave the state. Not willingly
Expert:  RobertJDFL replied 1 year ago.

Sure, I completely understand where you're coming from. Moving out of state does not automatically equate to kidnapping -not sure if you were worried about that being a possible issue, but it's not, because legal parents share legal custody. That being said, the decision to move can certainly backfire if the other parent petitions the Court for an Emergency Order directing the children back to North Carolina. The last thing you want is to move only to have a Sheriff show up at your door with a Court Order to take your children back to North Carolina without you. Not to mention the Judge may be angry and forever biased against you after your ex has presented their version of the facts as to why you moved in an Emergency Motion.

If you are looking to move out of North Carolina the best approach assuming the other party will not consent to the move is to file a Complaint for Child Custody seeking permission to move with the child. And remember, the focus is the best interest of the children -not what is in your best interest. The seminal case on point in North Carolina is Ramirez-Barker v. Barker, 107 N.C. App 71. Mom filed a motion to modify an existing Order to allow her and the child to move to California. After hearing the evidence including testimony from both parents and a psychologist the judge decided moving to California was not in the “best interest” of the child and the motion was denied.The five factors the Court examined were:

  1. The advantages of relocation to improve the minor child’s quality of life.
  2. The custodial parent’s motives in seeking to move.
  3. The likelihood that the custodial parent will comply with visitation orders.
  4. The integrity of the non-custodial parent in opposing the move. (good faith or spite to oppose move?)
  5. The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the minor child’s relationship with the noncustodial parent.

I know you aren't moving out of spite, and your heart certainly seems to be in the right place - you have tried to work with your ex to come up with a schedule.

While you could simply leave, my suggestion is you talk to a local lawyer about filing a motion seeking permission from the court to move, thereby avoiding a possible order to return the children to North Carolina or a possible contempt action when he is denied visitation.

Customer: replied 1 year ago.
Can I file myself to move at the court house?
Expert:  RobertJDFL replied 1 year ago.

Yes, a lawyer isn't required to file. However, not all Clerk of Courts have the forms, and they may vary slightly by county (so you can't necessarily just take the forms from County A and use them in County B). I would call your clerk's office and see if they have the forms to modify custody. Sometimes they can be downloaded online (with instructions), other counties have packets that you have to physically pick up and there may be a small cost.

Customer: replied 1 year ago.
Is there anything else I should check maybe like child support to let them refile since we will be going to court?
Expert:  RobertJDFL replied 1 year ago.

It's not a complaint --a complaint would be if it's an original suit, and you already have an existing case from your divorce, with a case number. It's a modification of visitation.

That's the only thing you would want to check, because you are the one bringing the motion -you are seeking the change. You wouldn't want to check off child support unless you were seeking an increase.

Customer: replied 1 year ago.
The court house looked up my divorce and said my separation papers were not tied to my divorce so I us to file it as a complaint.
Expert:  RobertJDFL replied 1 year ago.

Oh, okay. I just didn't want you to file it incorrectly if you already had a case!

Customer: replied 1 year ago.
This packet is confusing I don't know what to put or check
Expert:  RobertJDFL replied 1 year ago.

What are you confused about? I can try to explain something to you.

Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Should I check child support to? We settled In the separation papers. But if we are going to court should I check child support and refile since I will be asking for full custody? Anything else I should check on this page or anything else I should fill out.
Expert:  RobertJDFL replied 1 year ago.

You can, that's just a civil cover sheet, more of a formality, and I've never known a court to not hear an issue or decide a matter based on what is or isn't checked off.

Honestly, child support may not even change or may change very little. You're not seeking full custody, because you still want your ex to have visitation, correct? So assuming the court allows you to move with your children, depending on the visitation schedule set up, your ex could end up with the same amount of days as he has now with every other weekend visitation by being granted visitation over holidays and during the summers.

Customer: replied 1 year ago.
Yeah I still want him to see them. Is there anything else I should check on that page or fill in?
Expert:  RobertJDFL replied 1 year ago.

On the right hand side, you want to check off "no" where it asks if you want a jury trial, and then right below it where it says name of attorney or party if representing yourself, you fill in your name and address and I believe there is a separate line on the form for your telephone number. You obviously don't have to worry about firm name, bar number, or whether this is the initial appearance in the case - that's for lawyers only.

You'll also want to sign and date the bottom.

Customer: replied 1 year ago.
I'm filing myself but my divorce lawyer is going to court for me
Expert:  RobertJDFL replied 1 year ago.

Alright --but they want you to file the complaint? I'm surprised they don't want to handle everything and make sure things are filled out correctly.

Because then their information needs to go where it says attorney/party name, along with their bar number, firm name, firm phone and fax number and it is their signature, as your representative, and the person who is appearing in court, which goes on the form.

Customer: replied 1 year ago.
This is so crazy. He told me if I filed he would go to court for me because I'd be doing the paperwork.
Expert:  RobertJDFL replied 1 year ago.

That's a little unorthodox, in my opinion, but their name and information needs to go on that cover sheet because they are the party representing you. You are not representing yourself.

Expert:  RobertJDFL replied 11 months ago.

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