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Custody modifications must be in the child’s best interest

A recent article in the Huffington Post observes that judges handling family law disputes would probably say, if asked, that it is often heartbreaking to modify a custody order so as to permit a custodial parent to relocate to another state with a child. Nevertheless, one of the reasons that an existing child custody order can be revisited, and quite possibly modified, is due to one parent's desire to relocate. According to Psychology Today, research indicates that children of divorce fare better if their parents remain in the same local area. Studies also show that if one parent relocates a child more than one hour away from the other parent, the child often exhibits signs of hostility and anger. In many instances the child suffers emotionally and develops poor physical health.

Children of tender years are especially vulnerable to disruptions in their familial attachments and suffer the most when relocation occurs. Nevertheless, as noted in Psychology Today, "moving is ubiquitous" in North American society. Those who are between the ages of 20 to 34, the age group most likely to have young children, are more prone to move than older Americans. Moreover, relocating with children following a divorce is becoming more common.

In granting a motion to modify custody, a North Carolina court must determine that: (1) a substantial change in circumstances affecting a child has taken place since entry of the existing custody order, and (2) that modifications are in the child's best interest. In evaluating the best interests of a child in a proposed relocation scenario, the welfare of the child is to be a court's guiding light. In determining whether to modify custody in order to accommodate a relocation, some of the factors that may be considered by the court include whether the relocation would improve the life of the child, the motives of the custodial parent in relocating, and the likelihood that a realistic visitation schedule could be arranged that would preserve the child's relationship with the non-custodial parent. In Green v. Kelischek, a case whose appeal was decided earlier this year, a judge had occasion to apply these factors.

The decision in Green

In Green v. Kelischek the original custody decision gave joint custody to both parents. The mother had primary custody during the school week and the father had physical custody each weekend. After the mother proposed to relocate to Oregon, both the mother and father were interested-for different reasons-in modification of the original custody order. The lower court judge modified custody to provide that, if the mother relocated outside of North Carolina, the former husband would be entitled to primary physical custody.

The North Carolina Court of Appeals upheld the trial court's decision since there was evidence showing that the child had a close and loving relationship with his father and extended family members-both maternal and paternal-all of whom lived in North Carolina. Further, the child was happy, well-adjusted and participated actively in extracurricular activities. The record of the proceedings showed that there were no benefits to the child from relocation to Oregon while there would be a substantial adverse impact on the child's relationship with his father.

Seeking legal guidance

Regardless of whether you are considering having a child custody order modified, or your former spouse is seeking a modification, you are advised to contact an attorney. Child custody modification is a complex process. An attorney experienced in handling modifications can help you defend your rights and protect both your interests and those of your child.