Custody - Parent Moving Out of State


#1

Are you objecting to him moving or him enrolling the child in school there? Does he have primary physical custody?


#2
quote:
[i]Originally posted by stepmother[/i] [br]Are you objecting to him moving or him enrolling the child in school there? Does he have primary physical custody?
Neither of us have primary custody. The papers state that we have joint legal custody and joint physical custody so that we have to agree and work jointly on all issues regarding my son's care, including education. I am opposed to him enrolling my child in a school across state lines, #1 because it will change my son's state residence from NC to SC (while I remain a resident to NC) and #2 because my ex previously agreed for my son to attend the school where I live now as it is a great school system and would be beneficial to keep him close to his current friends in my neighborhood, etc.

#3

In that scenario, if your opposition to him being enrolled in school where the other parent lives is strong enough and the extra 5 minute travel time is going to make that much difference, the only option I see is to seek modification of custody. I suggest that you think it over and decide if there are advantages to either scenario that would change your mind. Since you share joint legal and physical custody you will have to agree one way or the other, or let the court decide. Your child is just now beginning school so it wouldn’t be a question of close friends he would have to leave behind. Have you checked out the school system there? Is there a specific reason why he wants to change it now? There’s a point where you must choose your battles and realize that there’s an advantage to working with the ex…
I can’t see either of you realistically being in violation of the agreement for an extra 5 min. The 5 min difference could easily be made up in traffic signal changes or getting behind a school bus, road construction…any number of things could make a 5 min difference. Prohibiting either parent from moving out of state or over a certain distance away is to make joint custody possible but when that move is actually only a small time difference, I’m not sure the courts would hold either of you to it. IMHO, I think it would be a waste of money and time to go back to court over a change like this. Discuss it with the ex…find out why he has decided to change…let him know your reasons to objecting…see if you can work something out.

In my own situation the children have stayed in the same school which is near my husband’s business (he owns his own business) and the afterschool sitter. Even when his mother moved to the town directly south and we moved to the town directly north. It’s about a 30 min drive either way but it was fair. They use my husband’s business address for school so that the children wouldn’t have to change schools.


#4

My concern is not the additional 5 minutes of time. My concern centers around the fact that he would be changing my son’s state residency. If he moves my son to SC, what is to prevent him from going to the SC courts in 6 months and petitioning for full custody? Afterall, at that point my son would be listed as living at the SC address and attending a SC school. It is very feasible that the SC courts would grant him full legal custody based upon this information. Therefore, all decisions regarding my son’s care would be made solely by his father - who has never made any medical or educational decisions for him thus far. My ex has never attended a doctor’s appointment or ER visit or Teacher/Parent conference to assist me in making any decisions regarding my son’s care. (Despite the fact that he is kept fully informed of every doctor’s appointment and parent/teacher conference - he has chosen not to attend.) In all honesty, he doesn’t even know the name of my son’s doctor much less what is going on with him in pre-school. My son’s father was supposed to be taking him to the dentist regularly - he took him 2 1/2 years ago and never took him back… Why would I want to take the chance that he’ll be solely responsible for making those major decisions when he has no history of doing so in the past?

I think it is great that you don’t have to deal with this situation because you have a neutral location that can be used for school purposes. That is awesome for your children. However, I do not have that luxury. I have tried to talk to the ex and have explained my reasons for not wanting my child to attend school in SC. It falls on deaf ears… The last time we tried to discuss this it ended with him threatening to take me back to court for custody… Which I’m afraid is where this is headed…


#5

I would have to agree that it sounds as though you are on the path back to court since neither of you is willing to budge on this. Playing devil’s advocate…your ex is likely thinking the same thing about custody. If he moves to SC, then you could file for primary custody since the father lives in a different state…but as I said, I don’t know that the courts would see the difference of 5 minute drive time to be reason enough to grant you primary custody over the joint custody that is already in place.
I do not know what the laws are in SC but it’s unlikely that he would be granted primary custody solely on residence status. I would think that since you share custody now, it would still be on your ex to prove to the courts as to why custody should change.

That is why I suggested that you go to court for primary custody now. Essentially, striking first. I believe that mediation would be prior to this. Is your ex going to have him during the time that school starts, so he would be able to enroll him and then have him start school? Would you not be able to enroll him in school here prior to school starting? Do you share equal time? Is this a court ordered joint custody or by signed agreement?

Keep in mind that custody can be filed for at any time. If you gain primary custody, your ex can turn around and file for modification of custody. The only good thing is that once you have a court order in NC the order must be filed in another state. Otherwise, NC has jurisdiction. Keep or get documentation of all that you mentioned. Who took him to the dentist/doctor, and when. Who buys clothes. Who “takes care” of your son on the day to day things…
You should consult an attorney.


#6

If he moves away and enrolls your child in another school his act does not place you in violation of the custody agreement. If you have joint legal custody you can contest the change of schools by filing a motion with the court and ask that your son remain in the school that he is districted to from your residence.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#7

Would my son’s residency change from NC to SC if he was attending a school in SC while splitting time between my house in NC and his father’s house in SC?


#8

If he was spending equal time in both states he would be a resident of both. If you are answering if the jurisdiction over your custody action would change, it would not unless your son resided primarly in South Carolina for six consecutive months.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#9

My son’s father recently informed me that he would be moving just across the state line and that he would like my son to attend school there. We both lived in charlotte when we got divorced and both currently reside in Mecklenburg county. My son is currently enrolled in a pre-school program in NC and will begin Kindergarten in August. His father is planning to move across the state line around this time. Currently our custody papers state that the parent may not move more than 30 minutes in regular traffic from the child’s school with no mention of state lines. Based upon my son’s current school, his father would be in violation of this agreement as his new residence would be 35 minutes away. Regardless, my son’s father is planning on enrolling my child in school across state lines despite my obvious objections. If he does succeed in enrolling my child in a school across the state line, due to my current address, it will automatically cause me to be in breach of the current custody arrangement. My question, does it matter if he moves across state lines when the only thing detailed in the agreement is the distance from the school?